Villanueva v. Becerra | Why (I Think) We Are Losing the Long Game


In September of 2017, attorney's at the law firm Michel's & Associates, P.C., filed a lawsuit against the California Department of Justice for their newly adopted "Assault Weapons" regulations. On occasion I will delve into these lawsuits and do my best to untangle the web of legal jargon to understand the lawsuit and predict the potential outcomes of the case based on previous judicial decisions (precedent). 

In the interest of full disclosure: Iam not a lawyer. I have not been to law school, but I have some spent some time in law enforcement working on the inside of courtrooms. I have some understanding as to how these cases go, and I am fully aware that sometimes attorneys are up against an impossible judge who would rather uphold his political ideologies than the law; however, I am often disappointed when I read the angle from which these law firms are approaching the argument.

For example, in Villanueva v. Becerra, the law firm asserts that the Department of Justice (DOJ) added regulations that were outside the scope of the legislation enacted by voters. The State easily overcame this argument by stating the new regulations were in-line with the legislature's intent. Rather than challenging the constitutionality of a law, it seems that these law firms are trying the 'band-aid' approach; they are challenging administrative decisions and using minutia to attack laws one at a time. 

Now, there may be reasons beyond my knowledge that these law firms have chosen to fight the small fight in these lower courts. It is possible that the funding was not available to assert a more grandiose argument. Maybe those assertions would ultimately lead to a petition to the U.S. Supreme Court (SCOTUS), and the lawyers involved don't have the capital or time to invest in a four to six-year fight up to the High Court. 

Still, I take issue with the arguments presented in these cases, because based on my research of judicial precedent, the argument against assault weapons has already been won, but no one is making it. My theory comes from a precedent set in 1939 by the SCOTUS in the United States v. Miller (1939). A couple of criminals traveled over state lines with a sawed-off shotgun, and were apprehended under a violation of the National Firearms Act.

In this particular case, the Supreme Court determined that the sawed-off shotgun was not a protected firearm because it did not have a military application. The direct quote is this:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense."

This quote from the Supreme Court set the legal precedent by which all firearms are judged: Do they have "some reasonable relationship to the preservation or efficiency of a well regulated militia"? Well, in order to answer that question, all one needs to do is look at the setup of a basic infantryman and what he carries. This indeed is the origin of the Second Amendment, after all. Much of the debate against a "Standing Army", and the Anti-Federalists believed it was important to arm the people in case a professional army ever tried to enforce oppressive laws or take power for themselves.

This is was not a new concept. Their fear was well founded, as Great Britain had a recent history of Kings and Parliaments forming armies to usurp power from the other. The Second Amendment was not an original idea; it was an American interpretation of writings from the mid 1700's. William Blackstone, an English Judge and Politician, wrote in the English Commentaries" that citizens have the right to arm themselves for war, and have a "natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." This was later acknowledged and cited by Supreme Court Justice Antonin Scalia in the case District of Columbia v. Heller (2008)

So there it is: United States v. Miller made it clear that the weapons that are protected must have a reasonable connection to the common defense and some military application for use in the militia. We know that a common infantryman might be armed with anything from a knife to a hand grenade. They might carry the standard M4 Carbine, the M249 or the M240B. So ask yourself then, or better yet, ask your local congressman, why those firearms are being restricted in the United States? Why are our citizens unable to own and carry firearms that would allow them to engage in their God-given right to self-defense? And why are we prohibited from owning firearms that have been deemed as constitutionally protected by the United States Supreme Court?

If their answer is anything but, "We are violating the Oath of Office we took to uphold the Constitution", then vote them out of office. They are tyrants, and they are leaving the American people defenseless against their tyrannical oppressive laws and restrictions. They do not want another uprising when they impose taxes so steep the common man can't afford anything but bread and beans. Instead of running this country honestly and within the confines of the power granted to them, they plot to usurp the power the people and impose their will on the citizenry.

If we are not careful, soon we will be more like subjects to the crown than an independent people. My recommendation to all those reading this article to make your monthly contributions to the National Rifle Association Institute for Legal Action, and start becoming as vocal about your passion as your opponent is.

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